Saturday, September 28, 2013

GateHouse: DOJ comes to the aid of public defenders

A lawsuit in the state of Washington has alleged that public defenders are so overworked that people accused of a crime are denied their Sixth Amendment right to counsel.

The United States Department of Justice is so concerned with the allegations that they have recommended a series of corrective measures should the court find in favor of the claimants.

The DOJ’s position is rooted in the 50-year-old landmark U.S. Supreme Court decision in Gideon v. Wainwright. The unanimous decision required free legal counsel for defendants accused of a crime who could not afford a lawyer.

The decision was premised on the Sixth Amendment, wherein the framers of the U.S. Constitution provided, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."

This summer, Attorney General Eric Holder told a gathering at the American Film Institute, “[D]espite the undeniable progress our nation has witnessed over the last half-century, America’s indigent defense systems continue to exist in a state of crisis.”

Norman Reimer of the National Association of Criminal Defense Lawyers told an audience at the Law Library of Congress last month, the decision by the DOJ to intervene in the Washington cases “[I]s a breakthrough moment."

Just how bad is the problem that necessitated the intervention of the DOJ?

In the Washington case, the cities of Burlington and Mount Vernon had just two part-time lawyers handling 2,000 misdemeanor cases.

The New York Times editorial board recently lamented the plight of indigent defendants in New Orleans. In 2009, part-time public defenders in Orleans Parish handled the equivalent of 19,000 misdemeanor cases per attorney, annually. The Times estimated that the average time spent per case was about seven minutes.

Federal public defenders will be forced to terminate up to half their employees and close branch offices if funding stays at the same level in the upcoming federal budget starting Oct. 1. Michael Nachmanoff, a federal defender from Virginia said, “If action is not taken immediately to save the program, the federal defender system will be devastated.”

In western Pennsylvania, some counties outside of Pittsburgh pay as little as $40 an hour for court-appointed indigent defense counsel. These attorneys are called upon when there is a conflict of interest with the public defender’s office.

Try getting a plumber to come to your house for $40 an hour. Yet a defendant accused of armed robbery, facing up to 20 years in prison, can expect no better.

What the DOJ is proposing is unprecedented. They are urging the court, if the plaintiffs prevail, to appoint an independent monitor for public defender workloads, the first time ever in a federal case. The monitor scenario would be similar to what is going on in New York City as a result of the controversial “stop-and-frisk” court decision.

"We are absolutely committed to the principle that every indigent person who is accused of a crime is entitled to his or her constitutional right to effective assistance of counsel," Jocelyn Samuels, who leads the DOJ civil rights unit, told NPR.

As Samuels pointed out, the right to counsel is not merely the right to a warm body beside a criminal defendant, the right encompasses “effective” assistance of counsel. The Supreme Court has established the parameters of effective representation, now the federal government — as well as state and local governments — must make a substantial investment in indigent defense.

Whether its seven minutes of preparation or a woeful $40 an hour, America’s system of justice must hold itself to a higher standard or the protections afforded by the Sixth Amendment will be worthless.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
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